Does Cal Poly Have a Free Speech Problem? It’s Complicated.

Cal Poly San Luis Obispo has garnered national attention for a number of controversies. What do recent headlines tell us about the university’s collective understanding of the First Amendment?

On Oct. 4, five Cal Poly students protested near the booth of one of the largest U.S. defense and aerospace contractor, a company that’s also a noted benefactor of the university. Members of the SLO Peace Coalition gathered at Cal Poly’s career fair to peacefully protest Raytheon for providing military weaponry that Cal Poly student Kelsey Zazanis claimed “illegal killings of innocent civilians across the world.”

Yet Zazanis and four other classmates who protested reported receiving letters from the university, threatening disciplinary action should they be “involved in future situations.”

The warning is based on Cal Poly policy called, “Time, Place, and Manner,” which effectively sets the guidelines and limitations for campus activities. The warning letters didn’t specify what part of the policy they violated or were in danger of violating. However, “Time, Place and Manner” has a specific provision on demonstrations. That policy allows free expression to take public assemblies, marches and demonstrations; that free expression is limited to public events and spaces, not private events like the career fair. which only permits Cal Poly students and alumni to attend. The policy also gives Vice President for Student Affairs and Chief of University Police discretion over its interpretation.

In the letter Zazanis received, Cal Poly’s Office of Student Rights & Responsibilities (OSRR) Director David Groom claimed she was warned previously for protesting. Zazanis claimed she wasn’t, adding that she was vindicated by the university for a similar protest she was involved in.

Last April, a protest was organized against Raytheon and their financial involvement with Cal Poly at their spring career fair. For nearly twenty minutes, seven students from the SLO Peace Coalition protested near the Raytheon booth. Two weeks later, at least two students received warning letters from the OSRR. The letters also cited “Time, Place and Manner” policy violations, but were ambiguous — not unlike the warning letters protesters received in November. Some of the policy violations briefly touched on issues like carrying an “unapproved sign” and not providing student identification at the door.

Cal Poly spokesperson Matt Lazier told The Tribune in May that “someone who chooses to stage a materially disruptive protest causing health or safety issues during such a non-public event could face potential criminal charges if they refused to discontinue their disruption,” though no arrests or criminal charges were submitted to the district attorney’s office. But in November, Lazier was more ambiguous with regard to the kind of punishment students would face for continuing to protest at the career fair. Could students be criminally charged? Would they be unable to walk?

While the university has struggled to be fair, firm and consistent with administrative action, “Time, Place and Manner” does have legal precedent. The U.S. Supreme Court ruled on the matter in Cox v. New Hampshire [312 U.S. 569 (1941)]. In their unanimous decision, the court ruled that government cannot regulate the contents of speech, but it can reasonably place time, place, and manner restrictions on speech if that speech incurs possible infringement of public health and safety. Cal Poly has not deviated from the Supreme Court ruling’s fundamental application, and protesting students have not factored this case into their arguments.

Non-violent protests, including sit-ins, soap box speeches and non-violent marching, are now a mainstay at public institutions. The time, manner and place of these protests vary greatly, so it’s not particularly unreasonable for a university to exercise reasonable discretion when applying their policy. But the issue circulates around the level of disruption, and that becomes a legally murky dilemma. Compared to students talking loudly to each other around other attendees at the career fair, how disruptive are a group of students singing and chanting near a company recruitment area? Is the university regulating by decibel level? Compared to attendees loitering around booths for an undetermined period of time, how disruptive are students who protest for about eight minutes?

There are many factors that give public universities like Cal Poly more leeway to interpret policy, yet ambiguity of the same policy leaves students with little opportunity to determine when the line is being crossed and at what price.

People are quick to point out Cal Poly’s free speech-related issues, whether it involves students inviting right-wing provocateur Milo Yiannopoulos to speak on campus or white fraternity students wearing blackface. But in those cases, we’re dealing with free speech itself, not whether or not free expression is allowed in private areas of a public university.

It’s tempting to lump all these controversies together to say, “Cal Poly has a free speech problem,” but here’s the reality:

Free speech is profoundly free, but there are limits to where free expression is communicated. State and federal law — which includes Supreme Court precedent — gives public universities like Cal Poly the authority to enact “Time, Place and Manner” policies. However, Cal Poly is dangerously close to crossing a line when they enforce ambiguous policies to regulate behavior they believe could deter others from participating at events attended by protesters.

In a response to The Tribune editorial board’s support of the student protesters, Cal Poly Vice President of Student Affairs Keith Humphrey wrote that “promoting such behavior could unintentionally send a signal that Cal Poly is not a good place to recruit students.” That’s a constitutionally dangerous statement. Though Cal Poly has the right to regulate free expression within private events, their administrators are unwisely projecting the idea that free expression should be regulated based on “unintentional signals” that may or may not “impinge on the rights of other campus community members.” Then the conversation becomes a slippery slope to determining the extent of impingement that merits discipline. Given the most recent protest lasted only eight minutes, Cal Poly will have an extraordinarily difficult time proving that protesters impinged on the rights of campus community members for the entire duration of the career fair, especially when the target of protest was only one company.

Perhaps it’s time for Cal Poly to spend less time sending out ambiguously threatening letters and more time proactively bringing administrators and students to the table to develop specific policies that are consistently applied.